NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-6160-08T4
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
RALPH JAMES, SHELTON JAMES
and GREGORY O'NEAL,
Defendants-Respondents.
________________________________________________________________
Submitted February 1, 2010 - Decided March 25, 2010
Before Judges Carchman and Lihotz.
On appeal from the Superior Court of New
Jersey, Law Division, Essex County,
Indictment No. 08-05-1412.
Robert D. Laurino, Acting Essex County
Prosecutor, attorney for appellant
(Barbara A. Rosenkrans, Assistant
Prosecutor, of counsel and on the brief).
Yvonne Smith Segars, Public Defender,
attorney for respondent Shelton James
(Stefan Van Jura, Assistant Deputy Public
Defendant, of counsel and on the brief).
Lorane L. Posner, attorney for respondent
Gregory O'Neal.
Respondent Ralph James has not filed a brief.
PER CURIAM
By leave of court, the State appeals from an interlocutory
order of the Law Division granting defendants Shelton James,
Ralph James and Gregory O'Neal's motion to suppress evidence
seized from a vehicle driven by O'Neal as a result of an
allegedly unlawful search. The evidence supported an indictment
against defendants charging them with third-degree possession of
heroin, N.J.S.A. 2C:35-10a(1); third-degree possession of heroin
with intent to distribute, N.J.S.A. 2C:35-5a(1) and b(3); and
possession of heroin with the intent to distribute within 1,000
feet of a school, N.J.S.A. 2C:35-7. We reverse.
These are the facts adduced at the motion to suppress. On
January 2, 2008, New Jersey State Trooper Paul Kochis
interviewed a confidential informant (CI), who, in the Trooper's
presence, allegedly contacted an individual identified as "Rock"
and set up the purchase of two bricks of heroin.1 The
transaction was scheduled for a location on Schley Street in
Newark, and Kochis, together with three other officers,
proceeded to the location where they observed the CI's vehicle
parked in front of 290 Schley Street. The officers parked their
vehicle approximately three or four car-lengths away.
1
A brick consists of 50 "decks" or glassine packets of heroin.
A-6160-08T4
2
Five to ten minutes later, at approximately 1:30 p.m., a
black Buick pulled up and parked behind the CI's vehicle in
front of 290 Schley Street. O'Neal was driving while Ralph
James and Shelton James were passengers. Kochis testified that
he was in an elevated SUV-type vehicle, used binoculars to
enhance his vision and had an unobstructed view of both the CI's
car and the black Buick.
Kochis saw the defendant O'Neal reach into the ceiling
upholstery of his car and pull out two packages that appeared to
the trooper to be glassine envelopes of heroin packaged as
bricks. O'Neal then looked in the direction of the police
surveillance vehicle and appeared "startled, just surprised."
O'Neal immediately drove away.
Without losing sight of O'Neal's car, the officers followed
O'Neal through several streets in Newark until they stopped his
car in a parking lot at a McDonald's restaurant located at the
intersection of Route 22 and Long Avenue in Hillside. Kochis
waited for O'Neal's car to clear the heavily congested
residential area around Schley Street before activating his
car's lights and sirens. All three followed the officers'
orders to exit the car and then were placed in handcuffs.
Kochis looked into the car and saw some suspected heroin on
the front passenger side floor. Kochis then entered the car and
A-6160-08T4
3
seized what turned out to be 49 decks of heroin. He then
reached into the ceiling upholstery of the car and seized
another four bricks of heroin.
Prior to this investigation, Kochis had arrested the CI for
drug offenses and registered the CI with the New Jersey State
Police. Before this incident, Kochis used the CI several times
with the information leading to arrests.2 Kochis testified that
the CI provided information with the understanding that he would
receive leniency on his pending criminal matter.
In her opinion suppressing the evidence, the judge found
Kochis to be credible but concluded that there was no probable
cause to search and detain defendants. She determined that
there were no facts that the CI was credible or reliable and
stated that "[t]he tip itself does not provide any intimate
details of the criminal operation that would be hard to know."
She also noted the absence of details as to Rock and the storage
facility in the car as well as the fact that Kochis did not hear
the CI's conversation with Rock. As the judge said:
The trooper did not overhear anything
that Rock allegedly said when dialed by the
confidential informant. The confidential
informant did not give . . . . them Rock's
cell phone numbers so that they could
2
On cross-examination, he indicated that he could not identify
the arrests.
A-6160-08T4
4
conduct any further investigation to
corroborate the tip.
How did the troopers know who the
confidential informant called? How do they
know that he did not dial information or
dial for a weather forecast? Based on the
testimony the answer is they could not know
and did not know.
Trooper Kochis didn't testify to any
fact that would indicate the informant's
base of knowledge of the criminal event.
For example, the informant did not indicate
that he or she had seen Rock selling nor was
he asked or did he or she volunteer that he
or she had previously purchased heroin from
Rock.
....
[F]actual information that was related to
Trooper Kochis by the confidential
informant does not confirm any personal
knowledge of the criminal or the criminal
enterprise. Therefore, in the instant case
in a totality of the circumstances analysis
without any showing of the informant having
personal knowledge of intimate details of
the criminal operation [and] without any
factual basis for the court to conclude
that [the] informant is credible and
reliable, this court finds there was no
probable cause based on the informant's tip
that would support the seizure of the
defendants and the subsequent search of the
automobile . . . .
The judge further found that there were no exigent
circumstances warranting the police entry into the vehicle to
seize the heroin absent a search warrant.
On appeal, the State argues:
A-6160-08T4
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POINT I:
THE TRIAL COURT UNJUSTIFIABLY REQUIRED THE
STATE TO MEET AN ONEROUS BURDEN OF PROOF BY
REQUIRING A RELIABLE TIP FROM A CONFIDENTIAL
INFORMANT TO SHOW "INTIMATE DETAILS OF THE
CRIMINAL OPERATION." PROBABLE CAUSE EXISTED
WHEN THE INFORMANT'S TIP WAS CORROBORATED BY
THE TROOPER'S OBSERVATION OF ONE DEFENDANT
RETRIEVE HEROIN FROM A SECRET AREA IN THE
CAR IN THE PRESENCE OF THE TWO OTHER
DEFENDANTS AND A DEFENSE WITNESS PLACING THE
DEFENDANTS IN THE AREA AT THE TIME OF THE
SALE.
POINT II:
THE SEARCH OF THE DEFENDANTS' CAR FELL
WITHIN THE PLAIN VIEW AND AUTOMOBILE
EXCEPTIONS TO THE WARRANT REQUIREMENT. THE
HEROIN WAS IN PLAIN VIEW ON THE CAR'S FLOOR
AND IN THE CAR'S STASH AREA. EXIGENT
CIRCUMSTANCES WERE PRESENT BECAUSE IT WAS
NOT FEASIBLE TO GUARD THE CAR, STOPPED IN A
PARKING LOT OF A FAST FOOD RESTAURANT WITH A
STEADY STREAM OF CUSTOMERS, WHILE OFFICERS
TRIED TO SECURE A SEARCH WARRANT.
A. The police saw the drugs in the
defendants' car while lawfully in the
area from where they made their
observations.
B. Exigent circumstances existed
because anyone could have gained access
to the car stopped in the parking lot
of a fast-food restaurant with a steady
stream of customers.
Our standard of review of search and seizure appeals is
simply stated.
[A]n appellate court reviewing a motion to
suppress must uphold the factual findings
underlying the trial court's decision so
A-6160-08T4
6
long as those findings are supported by
sufficient credible evidence in the record.
. . . [A] trial court's findings should be
disturbed only if they are so clearly
mistaken that the interests of justice
demand intervention and correction.
[State v. Robinson,
200 N.J. 1, 15 (2009)
(quoting State v. Elders,
192 N.J. 224, 243-
44 (2007)).]
We will intervene, however, where the legal conclusions
based on those factual findings are in error. State v. Elders,
192 N.J. 224, 252 (2007) (citing Manalapan Realty, L.P. v. Twp.
Comm. of Manalapan,
140 N.J. 366, 378 (1991)).
The focal point of the motion judge's decision was that the
CI, whose information prompted the investigation and ultimately
the search, was not established to be a reliable basis so as to
establish probable cause.
Although we later consider whether consideration of the
CI's reliability should have prompted suppression of the search,
we briefly address the relevant factors for determining
reliability. The reliability of a CI must be considered by
indicia of his veracity and his basis of knowledge. State v.
Keyes,
184 N.J. 541, 555-56 (2005). Veracity and basis of
information are two factors in determining the totality of the
circumstance. State v Zutic,
155 N.J. 103, 110-11 (1998). In
determining veracity, a court must consider past reliability,
while basis of knowledge may be premised on the level of detail
A-6160-08T4
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and information provided by the CI. Keyes, supra,
184 N.J. at
555-56.
Here the CI's veracity was established by Kochis'
confirmation that the CI's past information had resulted in
three or four arrests. While Kochis later contradicted that
information by indicating that he did not know of any arrests,
that fact does not end the inquiry. In terms of the CI's basis
of knowledge, the CI indicated that he had purchased from Rock
in the past, and on this occasion, he was able to establish both
the time and place of Rock's arrival as well as the presence of
heroin in the vehicle.
Our difficulty with the judge's analysis is her over-
reliance and concern on the bona fides of the CI. The flaw in
the reasoning is that the CI's tip and information did not
create the probable cause; simply stated, it brought the
officers to the scene. The judge found the officers to be
credible, and while the CI's reliability based on past
information may not have been established, his reliability and
veracity as to the present information was confirmed by the
events that transpired at the scene. The CI provided the
previews of what ultimately became the main event. What the
officers observed on a legitimate stakeout, prompted by the CI's
information or at best, a tip, established at least reasonable
A-6160-08T4
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suspicion if not probable cause to proceed further in the
investigation ultimately leading to the arrest of defendants.
Kochis went to Schley Street with information of a pending
sale of heroin to the CI. Shortly after arriving, Kochis saw a
Buick pull up behind the informant's car and then saw O'Neal
reach into a storage area cut from the Buick's roof upholstery
and take out bound, glassine envelopes, commonly used to package
heroin. He observed what he believed to be the elements a drug
transaction. Later, after stopping the car and detaining the
occupants, Kochis saw glassine envelopes lying on the floor of
the car. The trooper made a "practical, common-sense decision
. . . given all the circumstances [that] there is a fair
probability that contraband or evidence" of a drug crime would
be found in the car and that the defendants committed the crime.
State v. Johnson,
171 N.J. 192, 214 (2002).
The trial judge overlooked Kochis's observation of the
packaged heroin that O'Neal took from the roof upholstery of the
car while Shelton and Ralph James were present. Although she
mentioned Kochis's observations in her summary of the testimony,
she failed to include any analysis of those observations in her
findings of fact. Kochis never contradicted himself when
testifying about what he saw, and Officer Spivey's testimony
A-6160-08T4
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corroborated Kochis's testimony as to the time of day and length
of time that defendants were on Schley Street.
Applying a totality of the circumstances analysis, Kochis'
direct observations, combined with the information provided by
the CI, support a finding of, at a minimum, reasonable suspicion
to stop the vehicle and ultimately, probable cause to arrest
defendants and search the vehicle. Courts must look at the
totality of the circumstances when determining whether probable
cause exists in a warrantless search and seizure case. State v.
O'Neal,
190 N.J. 601, 612 (2007). An informant whose inherent
reliability has not been shown can nevertheless be relied upon
where the veracity of the informant's information is bolstered
by the totality of the circumstances, which include the
observations of the police during an investigation. State v.
Zapata,
297 N.J. Super. 160, 172 (App. Div. 1997) (citing State
v. Probasco,
220 N.J. Super. 355, 358 (App. Div. 1987), certif.
denied,
117 N.J. 72 (1989)), certif. denied,
156 N.J. 405
(1998). Kochis' observations of the defendants' conduct on
Schley Street, including the presence of a stash area in the
car, corroborated the informant's information about a pending
drug sale.
As defendants concede, the trial judge, in her decision,
makes little mention of the events that transpired when Kochis
A-6160-08T4
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observed O'Neal reach up in the vehicle and extract what
appeared to be contraband. While they suggest that such
findings were implicit, we disagree. We find nothing in the
judge's findings relevant to a precipitating basis for the
officers following the vehicle and ultimately stopping it in the
parking lot of a fast-food restaurant.
This case is similar to State v. Birkenmeier,
185 N.J. 552,
555-56 (2006), where police's observations corroborated the
confidential informant's information that the defendant, at a
specified time, would make a delivery of drugs that would be
carried in a laundry bag using a particular make and model of
car. The police then pulled over the defendant's car, saw a bag
on the passenger seat and smelled marijuana emanating from the
car. Id. at 556-57. The Court held that the police's
observations corroborating the tip and the smell of marijuana
gave to a reasonable suspicion to stop and ultimately, probable
Id. at 561-
cause to arrest the defendant and search the car.
63.
In State v. Williams,
364 N.J. Super. 23, 37 (App. Div.
2003), there was less evidence corroborating a confidential
informant's tip than in this case, and we held that the evidence
generated a reasonable ground of suspicion justifying an
In Williams, an informant
investigatory stop of the defendant.
A-6160-08T4
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arranged a drug buy with a man named Andre. An officer
accompanied the informant to the train station where she used a
public telephone to call Andre, "confirmed that she was known to
him and placed an order for delivery to the train station by him
Id. at 28. The officer
of two twenty-dollar 'pieces.'"
overheard this conversation.
Within fifteen minutes, a green Mazda arrived at the train
station and parked. The informant identified the passenger of
the car as Andre. No other information, such as a description
of Andre, his clothes, his mode of transportation or the
presence of companions, corroborated the identification. Ibid.
The defendant exited the car, walked and looked around, but did
not engage in any suspicious activity before re-entering the
car. As the driver sought to drive off, the police boxed the
car with their own vehicles and then detained the defendant
Williams and the driver. The driver consented to the search of
the car, where the police recovered two foil packets of cocaine.
Id. at 28-29.
The police arrested both men.
We held that the informant's on-scene identification of the
defendant, along with the fact that the officer overheard the
informant's conversation with the defendant proposing a drug
transaction, sufficiently met the reasonableness standard
required for an investigatory stop. We reached the conclusion
A-6160-08T4
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even though the informant was seeking favorable treatment on a
drug matter of her own. Id. at 37.
As in Williams, because Kochis overheard the conversation
setting up the drug sale, "the imminence of criminal conduct was
not substantially in question." Ibid. Additionally, like the
informant in Williams, the CI's veracity in this case was
increased because he expected leniency regarding his pending
charges. It is "inconceivable" that the CI would have
"consciously misidentified" the defendant, when the informant
knew that Kochis would not assist him with his pending charge if
We recognize that both Birkenmeier and Williams are
he lied.
reasonable suspicion cases, yet here, Kochis' observations of
what appeared to be part of a drug transaction, provided
stronger indicia of criminal activity.
Following the apprehension of the vehicle in the restaurant
parking lot, the officers observed what appeared to be heroin on
the front passenger's seat and observed 49 bags of heroin on the
floor of the vehicle. They then arrested defendants, entered
the vehicle and conducted a search, discovering another four
bricks of heroin. The judge concluded that a search warrant was
necessary, focusing on the lack of exigent circumstances.
The New Jersey Supreme Court has made it clear that under
Article I, para. 7 of the State Constitution, a separate finding
A-6160-08T4
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of exigent circumstances is required in addition to the
existence of probable cause for the lawful search of an
State v. Pena-Flores,
198 N.J. 6 (2009); State v.
automobile.
Cooke,
163 N.J. 657, 670-71 (2000).
The court reaffirmed the automobile exception to the
warrant requirement, including the requirement that the State
prove exigent circumstances to justify a warrantless search
pursuant to that exception. In Pena-Flores, supra, the Court
held:
[I]n accordance with "our unwavering
precedent," the warrantless search of an
automobile in New Jersey is permissible
where (1) the stop is unexpected; (2) the
police have probable cause to believe that
the vehicle contains contraband or evidence
of a crime; and (3) exigent circumstances
exist under which it is impracticable to
obtain a warrant. The notion of exigency
encompasses far broader considerations than
the mere mobility of the vehicle.
[
198 N.J. at 28 (citations omitted).]
Whether or not exigency exists to justify a warrantless
search is determined on a case-by-case basis in light of "the
totality of circumstances," but the critical issues for
consideration remain "officer safety and the preservation of
evidence." Id. at 28-29. Explaining further, the Court
detailed a non-exclusive set of circumstances for consideration
in determining exigency, including:
A-6160-08T4
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for example, the time of day; the location
of the stop; the nature of the neighborhood;
the unfolding of the events establishing
probable cause; the ratio of officers to
suspects; the existence of confederates who
know the location of the car and could
remove it or its contents; whether the
arrest was observed by passersby who could
tamper with the car or its contents; whether
it would be safe to leave the car unguarded
and, if not, whether the delay that would be
caused by obtaining a warrant would place
the officers or the evidence at risk. As we
have previously noted, "[f]or purposes of a
warrantless search, exigent circumstances
are present when law enforcement officers do
not have sufficient time to obtain any form
of warrant."
[Id. at 29-30 (citations omitted).]
While the trial judge found no exigency, we disagree.
There were three defendants (and four officers in one vehicle)
present at the scene in a McDonald's Restaurant parking lot
during lunch hour at 1:30 in the afternoon. The restaurant is
located on Route 22, a heavily trafficked thoroughfare, and the
circumstances of the stop, location and persons in the area are
fraught with dangers, both known and unknown. The stop resulted
from a chase, albeit not at high speeds but through an urban
area, after police observed defendants in the initial stages of
participate in a drug transaction. We have little doubt that
the totality of these circumstances create an exigency
envisioned by the Court in Pena-Flores. The circumstances here
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were too dynamic to conclude otherwise. We are satisfied that
the warrantless search of the vehicle was proper.
We conclude that the trial judge erred in granting the
motion to suppress.
Reversed.
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